Thursday, August 30, 2012

These two words – "Internet freedom" – are
ricocheting around cyberspace almost as fast as neutrons and protons bouncing
around inside an atom's nucleus. Well, almost as fast.

Both Republicans and Democrats – and most everyone else –
proclaim to be in favor of Internet freedom. Here's a Fox News article, "The
2012 Political Tug of War for the Internet," that describes the political
effort to capture the "Internet Freedom" flag. If you like, you can
quickly find many others to the same effect.

The article points out that the Republican Party platform has
a plank expressly headed, "Protecting Internet Freedom," and the
Democrats almost surely will follow suit next week. Indeed, the article quotes
President Obama stating: "Internet freedom is something I know you all
care passionately about; I do too."

So, no worries? We're all for "Internet freedom"
now?

Not so quick.

I am reminded
of Abraham Lincoln's remark: "The world has never had
a good definition of the word liberty. We all declare for liberty, but in using
the same word we do not mean the same thing."

We all may declare for "Internet freedom," but
we do not necessarily mean the same thing.

My own definition is closer to what I
think the Republicans have in mind, but you're welcome to yours, of course.

The Republican platform declares:

"The Internet has unleashed innovation, enabled growth, and inspired
freedom more rapidly and extensively than any other technological advance in
human history. Its independence is its power. The Internet offers a
communications system uniquely free from government intervention."

And it also
states that the current Administration, "through the FCC's net neutrality
rule, is trying to micromanage telecom as if it were a railroad network."

I
understand there are various dimensions that might be considered under the
rubric of Internet freedom. For example, the Fox News article refers to the controversy over the proposed SOPA
legislation as one such aspect.

But, to
my mind, the idea, as the Republican platform puts it, that the Internet should
be "uniquely free from government intervention," is fundamental to a proper
understanding of "Internet freedom." And, because net neutrality
regulation, pursuant to mandates recently adopted by the Federal Communications
Commission, necessarily involves government intervention, opposition to net
neutrality regulation is central to a proper understanding of Internet freedom.

Based on
the contrasting positions taken in Congress by party leaders, which are likely
to be reflected in the contrasting party platforms when the Democrats' finalize
theirs, there is a gulf separating the Democrats' and the Republicans'
understanding of Internet freedom. And it essentially comes down to this: Net
neutrality regulation is an essential element of Internet freedom for most
Democrats. (Note I said "most" because there are certainly individual
exceptions, including a number of Hill Democrats; I am referring here mainly to
party positions.)

Those
favoring net neutrality claim to fear that, without government intervention,
Internet service providers might "discriminate" among users or
content providers or may block access to web sites. In this view, government
must intervene to prevent such discrimination or blocking from occurring.

Those
opposing net neutrality fear that the greater threat to Internet freedom arises
from giving the government the power – or, more accurately, the government
arrogating unto itself the power – to determine whether private Internet
providers are "discriminating" among users or content providers, or to
force Internet providers to carry content they may prefer not to transmit. This
fear is enhanced by the knowledge that net neutrality's "discrimination"
prohibition is inherently vague, and, therefore, that the range of bureaucratic
discretion is inherently large, if not unbounded.

This
divergence is reflected, too, in different understandings of the First
Amendment's role. For most of those who favor net neutrality regulation,
including those FCC commissioners who voted for it, such regulation presents no
First Amendment free speech problem. The pro-regulatory forces claim that net
neutrality mandates are consistent with the First Amendment because the
government is merely ensuring that private Internet providers do not interfere
with the speech of users and content providers.

But, for
many, including me, who oppose the FCC's mandates to enforce "neutrality"
on the Internet, this conception turns the First Amendment on its head. The
First Amendment's free speech guarantee is intended to protect against
government censorship of private party speech, not to authorize government regulation
of the speech of private parties in the name of enforcing neutrality.

The Free
State Foundation, along with TechFreedom, the Competitive Enterprise Institute,
and the Cato Institute, recently filed an amicus
brief in the D.C. Circuit Court of Appeals making just such an argument
that the FCC's net neutrality regulations violate the First Amendment. If you
are interested, I commend the brief to you. And I first set forth such argument
in my 2007 law review article, "Net
Neutrality Mandates: Neutering the First Amendment in the Digital Age."

Now I
understand that those who favor net neutrality regulation generally abandoned
the "net neutrality" moniker a couple of years ago in favor of the "open
Internet" label. And now they seek to claim "Internet freedom."
But history teaches us that what matters, of course, much more than the label attached
to actions are the actions themselves.

So, to
return to Abraham Lincoln. In using the same words, we do not necessarily mean
the same thing. But I hope I have made clear that my conception of Internet
freedom is inconsistent with net neutrality regulation. And that, generally,
the Internet should remain, as the Republican platform states, "uniquely
free from government intervention."